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COVID-19: President Buhari acted constitutionally in restricting movement

– a rejoinder by Joseph Onele Esq. to Ebun-Olu Adegboruwa, SAN (2)

What is the argument on the other side? Only this, that no case has been found in which it had been done before. That argument does not appeal to me in the least. If we never do anything, which has not been done before, we shall never get anywhere. The law will stand still whilst the rest of the world goes on and that will be bad for both.  – Lord Denning M.R. Packer v. Packer (1958) 15 at 22. 

I hope that by now you would have had the time to read the first part of my response to your post, dated 31 March 2020 (hereinafter the ‘Trigger Post’). In the Trigger Post, you sought to respond to the Statement of the Honourable Attorney-General of the Federation and Minister of Justice, Mr. Abubakar Malami, SAN and Mr. Femi Adesina, Media Special Adviser on Media and Publicity to President Muhammadu Buhari (PMB).  Specifically, Sir, you attempted to justify why the Quarantine Act of 1926 cannot legalize restriction of movement by the President of the Federal Republic of Nigeria.

Esteemed Learned Silk, I have carefully reviewed your position on this matter and then made the choice to write this rejoinder, with a view to putting things in better legal perspective for posterity sake. I am motivated to write this rejoinder, having in mind the sacrosanct rule of the Supremacy of the Constitution and in my view, reasonable as well as justifiable actions taken to protect public health, public order, public safety as well as the rights of others.

Distinguished Learned Silk, it is my considered view that PMB acted constitutionally and well within the ambit of the extant legal framework as it relates to this matter. In justifying my position and with a view to continuing the legal arguments offered in support of my position – that PMB acted legally in imposing the restriction of movement, I shall proceed to adduce more reasons for my position in the succeeding paragraphs. In doing this, I hope to draw quite reasonably and magnanimously, from the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) (the ‘Nigerian Constitution’), relevant statutory provisions, including the Quarantine Act CAP Q2, Laws of the Federation of Nigeria, 2004 (the ‘Quarantine Act’) and National Health Act 2014, subsidiary legislation (COVID-19 Regulation) and case law.

Matters Arising on the Supremacy of the Constitution, Legislative Powers and Delegated Legislation

Perhaps, a good starting point for this conversation is to assert that the legal implication of a combined reading of Section 1 (1), (2) & (3) of the Nigerian Constitution is that the Nigerian Constitution is supreme and binding on all persons as well authorities. It equally flows from a reading of Section 1(1) of the Nigerian Constitution that all other statutes as well as legal instrument must derive their authority from the Nigerian Constitution. Further, a cursory reading of Section 1(3) of the Nigerian Constitution will reveal that the provision of any other law that is inconsistent with the provisions of the Nigerian Constitution is susceptible to a void declaration by a court of competent jurisdiction in Nigeria.

Learned Silk, while it is noted that the legislative powers of the Federal Republic of Nigeria lies primarily with the legislature as provided for in Section 4 of the Nigerian Constitution, it is my considered view that the Nigerian Constitution graciously allows the legislature to donate some of its lawmaking powers in instances where it so deems, through appropriate legislation. As you would rightly know, Sir, the outcome of such donated legislative power becomes what is termed ‘delegated legislation.’ I am sure you would agree with me that it needs no telling that ‘delegated legislation’ are laws made by the executive or other administrative bodies, which is a very huge part of any legal system in the world and forms part of the wider legislative process that is used for the regulation of any given society. For emphasis, however, it suffices to say that delegated legislation has become a part of the legal system in Nigeria.

Sir, it is my position that PMB acted constitutionally, further to the delegated power conferred on him by the National Assembly of the FRN in sections 3 and 4 of the Quarantine Act. As you would rightly know, Learned Silk, it is a settled principle of law that subsidiary legislation must have the force of law. Making recourse to section 10 (1) of the Interpretation Act, it is trite that “Where an enactment confers a power or imposes a duty, the power may be exercised and the duty shall be performed from time to time as occasion requires.”

Furthermore, Section 10(2) of the Interpretation Act stipulates that “An enactment which confers power to do any act shall be construed as also conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it.” It is, therefore, my view, taking the foregoing into account, that PMB acted well within the ambit of the extant legal framework in Nigeria and constitutionally so. Quite instructively, the Court of Appeal in Njoku & Ors v. Iheanatu & Ors has defined a subsidiary legislation as “one that was subsequently made or enacted under and pursuant to the power conferred by the principal legislation” and further heled that a subsidiary legislation “derives its force and efficacy from the principal legislation.”

Without appearing presumptuous, Sir, wondering if you do mind if I go a bit down memory lane, with a view to putting the concept of delegated legislation in better perspective. By way of background, delegated legislation dates back many centuries and most notably, the English Legal System (aka common law). Take for instance, in 1337 in England; a substantive part of government was by way of administrative provisions made by Sovereign in Council during this period whose power limits were never defined. Later periods saw the emergence of Statutes that gave the King in Council the powers to make proclamations that were to have the same force as Acts of Parliament. On this score, I seek to place reliance on some of the leadings scholarly works on Nigerian Administrative Law: Peter Adetunmibi Olaseinde Oluyede Nigerian Administrative Law (Fifth Edition, Ibadan University Press, 1988); H.W.R. Wade Administrative Law (Oxford, Clarendon Press 1967) 291; Jemina Benson ‘Delegated Legislation in Nigeria: The Challenges’ (2015) 17(3) European Journal of Law Reform 403.

PMB acted legally and in accordance with the Quarantine Act

The foregoing in mind and relying on the provisions of Sections 3 and 4 of the Quarantine Act, I dare say that the federal lawmakers acted within the constitutional framework in bequeathing their power to make health related law(s) including one for curtailing the spread of infectious disease(s) in Nigeria to the President. For emphasis, I now reproduce the summarised provision of section 4 of the Quarantine Act in my own words. As gleaned from section 4 of the Quarantine Act, the President, in this case, PMB is empowered to make regulations with respect to any or all of the following instances:

  • PRESCRIBEthe STEPS TO BE TAKEN IN ANY PLACE WITHIN NIGERIA for the purpose preventing the spread of any dangerous infectious disease from any place within Nigeria.
  • PREVENTof the Spread of ANY DANGEROUS INFECTIOIUS DISEASE from ANY PLACE WITHIN NIGERIA.
  • PREVENTthe Transmission of ANY DANGEROUS INFECTIOUS DISEASE from Nigeria or from ANY PLACE WITHIN NIGERIA, WHETHER AN INFECTED LOCAL AREA OR NOT, TO ANY PLACE WITHOUT NIGERIA.
  • PRESCRIBEthe POWERS and DUTIES of SUCH OFFICERS as to carry out SUCH REGULATIONS.
  • TAKE ANY STEPS, PERFORM ANY ACT, TAKE ANY ACTION, or MAKE SUCH ORDER as MAY BE REASONABLY NECESSARY to CARRY OUT THE PURPOSES AND GIVE EFFECTS TO THE PROVISION OF THE QUARANTINE ACT. 

COVID-19 regulation is a Law that is reasonably justifiable in our democratic society

Learned Silk and flowing from the foregoing, it is respectfully submitted that it cannot be correct to argue, as you did in paragraph 6 of your post that “The Quarantine Act does not contain any provision expressly authorising the restriction of movement of citizens.” I also believe you erred grossly in law when you opined in paragraph 5 of your post that “There is nowhere in sections 4 or 8 of the Quarantine Act that it is stated or anticipated that the President or Governor could make regulations for the restriction of movement of persons on account of infectious diseases.” Furthermore, it is my contention that you erred and grossly so in law, when you tagged the COVID-19 Regulations, 2020 issued by PMB as “mere executive regulation” despite same being a DULY ENACTED SUBSIDIARY LEGISLATION WITH FULL FORCE OF LAW! As you would know, Learned Silk, Section 37 of the Interpretation Act defines “subsidiary instrument” to include “any order, rules, regulation, rules of court, bye laws made…in exercise of powers conferred by an act.”

It is equally my position that the COVID-19 Regulations, 2020 issued by PMB has the full force of law and meets the requirement of Section 45(1) of the Nigerian Constitution. Respectfully, Sir and upon a careful consideration of the wordings of Section 45(1) of the Nigerian Constitution referenced in Paragraph 4 of your post, I have come to the determination that the COVID-19 Regulation, 2020 is A LAW that is REASONABLY JUSTIFIABLE IN OUR DEMOCRATIC SOCIETY. In my view, Sir, the test of reasonability here is not the subjective one but the objective man’s test.

Having said the foregoing, the lingering question now, Learned Silk, I believe is this:

Would a reasonable man, taking into account all the recent events, particularly, the public health emergency as well as the need to protect public order and public safety, come to the decision that the law, in this wise, COVID-19 justifiably made given the peculiar circumstances? 

PMB acted constitutionally and COVID-19 Regulations meet the Derogation Constitutional Test

In my considered view, Learned Silk, Sir, the INSTANCES WHERE THE FREEDOM OF MOVEMENT CAN BE DEROGATED FROM IN THE INTEREST of PUBLIC HEALTH, PUBLIC SAFETY AND PUBLIC ORDERHAVE BEEN REASONABLY MET IN THIS INSTANCE. This point becomes even more glaring when one takes into taking into account the growing number of persons affected by COVID and the COVID related deaths reported thus far.

Next Publication: Focal Point

Learned Silk, kindly permit me to stop again here for the time being. I shall continue my legal arguments and submissions in the next publication, where I hope to consider the purposive approach to interpretation of statutes as well as the Constitution. I hope to consider the propriety of asking the President to declare a state of emergency as alluded to in paragraph 9 of your post where you made reference to sections 45(2) &(3) and section 305(3) of the Nigerian Constitution.  Additionally, I shall consider the extent to which the FGN can exercise its powers as donated by the Federal Lawmakers in giving effect to the COVID-19 Regulations in States where actions were taken prior to the enactment of the COVID-19 Regulations. I shall also consider the argument(s) on proportionality of the actions taken by the FGN when balanced with the protection of rights of other citizens and restriction imposed on movement. Finally yet importantly, I shall consider the merit, if any, of arguments on the applicability of Faith Okafor v Lagos State Government and Attorney-General of Lagos State as championed in some quarters.

Concluding Remarks

In concluding, Learned Silk, I dare say that the implementation of COVID-19 Regulations, 2020 deserves the full support of all relevant stakeholders (your good self-inclusive), given the crucial role it plays in protecting public health, public safety and public order at this very critical time. We all ought to do better in supporting the commendable initiatives of the government at his very time and do the little we can in making our society better as well as safer for all.

Learned Silk, Sir, please do accept the assurances of my highest esteem, now and always.

Best regards,

 

 Joseph Onele Esq

Onele Esq. LLB (First Class, Ibadan) Postgraduate Diploma in Law (Aberdeen, Scotland, UK); Doctoral Candidate, Adelaide Law School, The University of Adelaide, South Australia (Senior Team Lead, Primus Grace LP, Nigeria).

thejosephonele@gmail.com

joseph.onele@primusgrace.com

joseph.onele@adelaide.edu.au

 

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